Let’s play a fun game, legal clauses edition. Sound fun? Ya? We thought so! Let’s dive in.
What is a severability clause?
A “severability clause” in a prenup is intended to protect you in the event that one of the previsions in your prenup is determined in be invalid. The clause means that the agreement’s terms are independent of one another, so that the remaining portion of the contract will remain in effect should a court declare one of the other provisions void or unenforceable. The presence of a severability clause states that the rest of the prenuptial agreement is still valid and should be upheld despite the invalid clause, if the couple is to divorce.
Financial Schedules and “Full and Fair Disclosure” – What’s the big deal?
“Full and fair disclosure” of assets and debt is very important to the enforceability of your prenup, but many couples just don’t understand to what extent they need to disclose assets. “Full and fair” after all, is a bit vague. So, let’s clarify- all the assets and debts that you are bringing into the marriage need to be disclosed. All. Not some, ALL. Disclosing income is also important, so HelloPrenup’s form includes a spot for you to list your prior three years of your income to be included on your financial schedule.
Many couples in a rush to get married, or, lets be honest, mostly just in a rush to finish their prenup 2 weeks before their wedding (looking at you, procrastinators) might want to rush this step, because we all know the financial schedule is annoying and time consuming. You may not want to take the time to write down all of your assets, or use your 1000000 passwords to login to all of your accounts, and think, what if I just sort of skip this step a little bit…
So, when you are feeling in a little of the lazy-rushing-whatifiskipthisstep type of mood, just remember that there are court decisions all across this great land where prenuptial agreements are being ruled as unenforceable because assets, income or debt were not fully disclosed in the financial schedule. Why? Why does this matter so much? The core reason is that a party cannot knowingly waive rights they may have to assets they do not know exist.
Our recommendation is to Take. Your. Time. Don’t procrastinate with this very important document. Financial statements should be completed to be best of your ability, listing all income, assets and debt. Go back to your statements and verify the values instead of guessing. Values should be listed as accurately as you possibly can. Hello Prenup’s form also allows you to list identifying information for accounts, like the last 4 digits of account numbers and the institution holding these accounts.
Taking your financial schedules A and B seriously will ensure you a better chance of having the prenuptial agreement enforced if the marriage ends in divorce. Alternatively, if you try and skimp on this section you run a major risk.
Include a Social Image Clause in case you are marrying Brad Pitt
“of course I’m marrying Brad Pitt…”
What is the point of a social image clause for the rest of us? Are they necessary for everyone? Concerns over reputation often arise when one spouse owns business, there is a family business involved, someone is a CEO or other high level employee, or partner in a business or firm. Business owners, partners, and high level employees are often concerned about exhibiting the right image to the public because that image can greatly affect their ability to maintain business ties.
A social image clause protects against certain posts or photographs that may be posted and seen as negative, that could cast a negative inference against the business that the spouse is closely associated with. This is common when a family business is involved. In doing so, this clause may limit the types of comments and photographs that may be posted on social media relating to a spouse.
Another reason may be as simple as retaining control over any photos that are posted on the internet. If one spouse is an active social media user, it may be important to the other spouse to limit or have approval of postings beforehand.
Mine vs Ours: Separate Property vs. Marital Property
Separate vs Marital property is terminology used to refer to property that should remain “Separate” ie the property of one party, versus property that should become property of the marriage, or “marital.”
Marital property can refer to some or all of the property acquired by either or both spouses during the marriage. Separate property can refer to any property the spouses acquired separately before or during the marriage. Your prenup allows you to decide how property is categorized – separate or marital. It is common for couples to choose for separate property to include any gifts or inheritances acquired by either spouse at any point in the marriage.
Real estate recapture: Recoup your investment on that lavish closet reno
Moving into your future spouse’s house? Plan to renovate the bathroom to fit your soaking tub? A real estate recapture may be right for you. A real estate recapture clause allows you to “recapture” any of the separate property funds (your cash money) that you contribute to the bathroom renovation (or kitchen, other improvements, etc) should you divorce.
Alimony AKA Spousal Support AKA Maintenance
Call it what you will, but alimony/spousal support/maintenance (for our purposes, “alimony”) can protect you if you are the lower earning spouse, or a spouse that plans to stay home with your children in the future. Because marriage is ultimately a financial partnership as much as it is a romantic partnership. This, my friends, is what we call this the business of marriage.
Alimony may very well be one of the most important topics that you will discuss with your future spouse. By it’s general definition, alimony an allowance made to one spouse in need by the other spouse who has an ability to pay, for support pending or after legal separation or divorce.
Why is alimony so important to discuss? Well, it could seriously affect your financial future. Alimony could provide you financial protection in the case you are the lower earning spouse and choose to stay home with the kiddos for a few years, lessening your future earning potential. On the flip side, alimony could be a major issue for you if you are the higher earning partner, and your fiancé has very little to no career aspirations.
In either of these above scenarios, protection is key. In some cases child support simply isn’t enough, and alimony could prove tremendously helpful. On the other hand, you could be working your tail off for years and earning far more than your spouse, while they sit on the couch, eating bon-bons and shopping online. So- make sure you and your future spouse are on the same page. Don’t miss the significance of this critical clause when negotiating the terms of your prenup.
Oooohhhhh a sunset clause- so romantic.
It’s true – prenups CAN be romantic with a sunset clause. A sunset clause allows you and your fiancé to decide the date of expiration for your prenuptial agreement. Why is an expiration date important in certain instances?
Here’s an example: You and your spouse have been married for 10 years. At this point, you both may feel like “hey, we’ve been married for 10 years. We have built quite a life together, and we could not have done it without each other. Our prenup should expire at 10 years, because at that point, what’s mine is yours.”
Now here is the flipside to a sunset clause- get ready for it – if you and your spouse have a sunset clause set at 10 years, and your spouse decides to leave you anytime after the 10 year expiration, the prenup will be treated as though it never existed. YIKES! Be careful what you agree to.
Xoxo, HP user. (any Gossip Girl fans here??)
Julia Rodgers is HelloPrenup’s CEO and Co-Founder. She is a Massachusetts family law attorney and true believer in the value of prenuptial agreements. HelloPrenup was created with the goal of automating the prenup process, making it more collaborative, time efficient and cost effective. Julia believes that a healthy marriage is one in which couples can openly communicate about finances and life goals. You can read more about us here Questions? Reach out to Julia directly at [email protected]